Outlaw Hot Dogs vendor says commissary rule is unconstitutional

To the list of unlikely challenges to the state constitution, you can add Steven Pruner and his controversial hot dog cart.

Pruner is the 60-year-old owner of Durham's aptly named Outlaw Hot Dogs. Between 11 a.m. and 3 p.m. on most weekdays, he can usually be found hawking Nathan's-brand hot dogs outside the Duke University Medical Center.

And if the North Carolina Court of Appeals rules in his favor on Sept. 26, he will move one step closer to changing how the state regulates the mobile food industry.

Mobile food vendors such as Pruner have long butted up against "commissary rule," the state law that requires them to secure space in commercial kitchens or brick-and-mortar restaurants as a prerequisite to obtaining an operating permit.

Mark Meyer, general inspections supervisor with the Durham County Public Health Department, says the commissary rule is an "essential" part of mobile food vendor operations.

The rule is how county health officials ensure that mobile food vendors have a place to, among other things, clean their equipment each day. It also allows officials to ensure that food trucks and food cart owners are "held to the same sanitation standards as other, more traditional food vendors," Meyer says.

But Pruner says the rule presents an unnecessary and costly hurdle for mobile food vendors. Renting space in commercial, properly permitted kitchens can cost upward of $200 per month for a food cart, he says.

So restrictive is the commissary rule, Pruner contends, that it conflicts with state law, specifically the provision that guarantees the right to work must be "protected from undue restraints and coercion."

"This is a right-to-work state," Pruner says. "All I'm trying to do is force the state to live up to the law."

However, Pruner's interpretation of right-to-work laws is unrelated to their actual premise: They don't guarantee anyone a right to work but rather are part of federal and state legislation that prevents employees who don't belong to a labor union from being denied benefits negotiated by union members.

The challenge itself can be traced to April of last year, when Durham police hit Pruner with a misdemeanor citation for operating his cart without a license. That happened after nearly three years of arguing with county officials over what he admits was his staunch refusal to comply with the commissary rule.

Why did he fight the state over a requirement to secure kitchen space? "Partly because it's hard to find some," says Pruner.

A coordinator for pharmaceutical tests, Pruner jumped into the hot dog business after the economy went south in 2008. He opened his business in 2009.

Initially it was difficult to find adequate commissary space. So Pruner says he began operating without a permit. In the subsequent months, he was arrested twice for selling hot dogs without proper documentation.

Today, Pruner operates in full compliance with the public health regulations. But he's not happy about it, as evidenced by his appeal of the 2011 citation. According to Pruner, not only is the rule impractical, it is unconstitutional.

In briefs prepared by his pro bono lawyers from the right-wing North Carolina Institute for Constitutional Law (NCICL), which is largely funded by the arch-conservative Pope Foundation, Pruner's argument against the commissary rule is peppered with tea party-flavored invectives against excessive government regulation. In conversation, he takes a slightly different tack, railing against the restaurant interests and bureaucrats that "are trampling on my freedom to work."

The commissary rule, Pruner says, makes little sense for hot dog sellers such as himself. Unlike other types of mobile food vendors, serving hot dogs requires little prep in a traditional kitchen, he says. "Unless I'm a total idiot, what health hazard is there?" he asks.

Actually, there are a lot. According to the United States Department of Agriculture Food Safety and Inspection Service, eating undercooked hot dogs poses an increased risk of consuming Listeria monocytogenes, the bacteria that causes Listeriosis. Symptoms include fever, abdominal pain, chills, diarrhea and a host of other food-poisoning related ailments.

Not every local hot dog vendor is opposed to the commissary rule. Josh "Zeus" Pfohl runs The Four Corners of Durham hot dog stand, which usually can be found at the foot of the county courthouse steps in downtown Durham. Pfohl rents space in the kitchens at Grill 46 in Durham, where he stores franks and other supplies.

While sympathetic to some of Pruner's argument, Pfohl says the commissary requirement is necessary.

"Of course I'd rather have the extra $200 to $300 a month," he says. "But I don't mind it so long as it keeps everybody [vendors] aware of the sanitation guidelines and customers from eating bad meat. People throwing up isn't going to help anybody."

Jeanette Doran, the NCICL's general counsel, insists that if protecting public health is the commissary rule's goal, then the state's inspection powers should be focused elsewhere.

According to Doran, the commissary rule should be narrowly tailored to accomplish its purpose while presenting as little burden to the business owner as possible.

In other words, given the process for "cooking" hot dogs, an inspection of Pruner's cart would be more appropriate, she says. "If the government's goal is safety, then inspecting the cart itself is exactly what they should be doing."

Assistant Attorney General Joseph Hyde, who is handling the case for the state, declined to comment, saying he is not authorized to speak about the case.

But in court documents, Hyde argues, "the public good resulting from a pushcart's daily cleaning and supplying at a commissary outweighs the burden on pushcart operators of maintaining a commissary agreement."

Should the three-judge appeal panel side with Pruner, Doran expects the state to immediately appeal the decision to the state Supreme Court. But because the court has discretion as to which cases to take on, it may be some time before Pruner's challenge is finally resolved.

Meanwhile, the state policy that governs the 77 active mobile food vendors is changing. In late June, near the end of the last legislative session, state lawmakers approved an amendment to the commissary rule that will give food truck operators the option of maintaining a commissary or making their food trucks the base of operations.

Larry Michael, head of the state Department of Public Health's Food Protection Program, says that those trucks will have to meet all of the statutory requirements placed on kitchen commissaries. That means these mobile kitchens will have to be equipped with, among other things, wastewater disposal systems, says Michael.

Along with that change, as of Sept. 1, all mobile food trucks will be inspected and graded for sanitation by county health officials.

Unfortunately for Pruner, the new language doesn't cover mobile pushcart vendors. Under the amended rules, these operators are still required to secure commissary space.

Pruner says he's arguing his case on principle.

"They're saying that I can't work without their permission," he says. "But if I'm doing everything right, and just don't have a piece of paper, too bad for them."